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2022 (10) TMI 707 - AT - CustomsReduced penalty under Section 114 of the Customs Act - improper export of buffalo meat - export of excess quantity of eat, than the processing capacity - refund the drawback - demand for return of drawback is dropped on the ground that no provision exist in the Customs Act for such recovery but confirmed the penalty under Section 114 of the Customs Act by reducing it from Rs.20,00,000/- to Rs.15,00,000/- - HELD THAT:- The Respondent-Department is of the opinion that since Note 6 contains a direction that export of meat and meat products must be sourced exclusively from APEDA approved plants and this M/s. Al-Azlan Frozen Foods could not produce more than 62 MT of frozen buffalo meat per day, there is improper export done by the Appellant. On perusal of the show-cause notice, the Order-in- Original and the Order-in-Appeal it would clearly indicate that they have referred to ‘buffalo meat’ and ‘processed frozen buffalo meat’ interchangeably at different places but consistently stated that M/s. Al-Azlan Frozen Food’s production capacity of buffalo meat per day is 62 MT. However, going by the APEDA certificate of registration granted to M/s. Al-Azlan Frozen Foods, copy of which is annexed to appeal memo at page 23, the production capacity of this food processing unit M/s. Al-Azlan Frozen Foods was 62 MT of “frozen meat” per day and 40 MT of “chilled meat” per day and if both are taken together it would be consistent to the pleading of the Appellant. The show-cause notice did not propose for any action concerning mis-declaration in the shipping bills or propose any penalty, for which discussion on the same is outside the purview of this appeal, besides the fact that not a single shipping bill is annexed to the show-cause notice to substantiate that description of goods exported was different. Since nowhere during adjudication, the Appellant had ever averred that it had exported only frozen meat and as Note 6 has not kept the category of export of meats to frozen one only, there is no basis in the claim made by the Department. This being facts on record and having regard to the fact that Respondent- Department had not taken into consideration the entire production capacity of M/s. Al-Azlan Frozen Foods and confined it to 62 MT meat to presume such mis-declaration though it is only in respect of frozen buffalo meat only, imposition of penalty on the basis of mathematical variation is unsustainable in law and facts. The order passed by the Commissioner of Customs (Appeals), Mumbai-II vide to the extent of confirmation of penalty at a reduced rate of Rs.15,00,000/- is hereby set aside - Appeal allowed.
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